proving the intent

N

norsk

Registered Users (C)
hi,

I received my GC in 2005 (based on marriage to a US citizen). At the time I received my GC, husband was working overseas. He was in discussions with his employer to transfer to the US, but as there were many problems with the company he was working for we ultimately did not return to the US permanently until mid-2008. We traveled to the US once or twice a year.

I have been in the US permanently since 2008 and I have recently had my naturalization interview where I was told that I should prove my ties to the US in 2005, 6 and 7 and that I had intent to live in the US during the years 2005-2007 and did not abandon my GC. This issue centers around the fact that for US taxation purposes we filed as nonresidents, given we were o/s the US greater than 182 days in those years. It is my understanding that this is the only issue and the person with the CIS seems to be trying to be openminded in this matter.

I have gathered whatever proof i could find and was wondering if anyone who has experience with such matters can look at it and advise me if they feel this would be deemed sufficient? Any thoughts/ideas on what other proof I could provide would be highly appreciated.

We did not have a house or rental property in the US at that time which i am sure makes my situation worse. so the list:

1. In Feb 2006 we almost purchased a house in the US - my husband and the seller both signed the contract but the seller backed out after a few days. I have a copy of that contract and the letter from the attorney who represented us in the process confirming our actions. The letter from the attorney will also state that we worked with him from Fall 2005 until we finally purchased our home in 2010. During this time we consulted him on various properties and he did the final closing for us for our current home.

2. In 2006 my husband purchased some land in the US that we bought with the potential to build upon. We still own these lots.

3. A letter from a developer which will state that we looked at two of his developments in 2005 and 2006; however we did not purchase the lots we were interested in as they would not percolate.

4. letters from my dentist and doctor that I have been their patient from 2005 up to present

5. purchase invoices (8) from internet retailers with stuff shipped to the address i have used in the US while we were overseas

6. letter from the credit card companies that show that i have been an authorized user with billing address in the US during the time period under review.

7. letter from our child's pediatrics clinic stating that he came for regular check-ups and received immunization in accordance with our state requirements

8. letter from my husband's employer overseas stating that the company had a great need for him to extend his time over there. The letter will confirm that my husband was requesting to be transferred to the US at that time.

Additionally, we were thinking about contacting our congressman and see if he could write the letter that would ask for a favorable decision on my application. Not sure if he would do that though but have no experience with that. Any suggestions?

I was also planning to write a explanatory letter to the USCIS in which i can say that even today i do not have many things on my name such as i still do not have any credit card on my name - only my husband's card with me as an authorized user, i do not have checking accounts, our vehicles are on his name. The only thing which my name is on is our house purchase contract dated 2010. Any thoughts on what else I might add to this letter.

I will very much appreciate any ideas/thoughts. thanks you
 
There isn't much hope for approval based on the 5 year rule. As a green card holder you're supposed to file US taxes as a resident, regardless of how much time you're spending in the US. You'll need VERY STRONG evidence to counteract your filing as a nonresident, and it doesn't look like you have that.

However, it appears that you qualify based on 3 years of marriage to a USC, in which case your residential ties more than 3 years before the filing date become practically irrelevant. If you met the conditions for the 3-year rule on the date when you applied, you could ask the IO to change the application to that basis. If you didn't meet all the conditions back then, but you meet the conditions now, you could immediately reapply with the 3 year rule if denied. When did you apply?
 
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thanks for your response. i have applied under 3 year rule living permanently in the US since mid-2008. In July 2011 it was 3 years since i permanently reside in the US and i filed my application in April'11 thus 3 year minus 90 days rule. I have met all the physical presence requirements and this is not what CIS is after. They do not question my last 3 years in the US, they question whether or not i have abandoned my GC in the prior years when i filed as non-resident (2005-2007) for federal tax purposes. Our filing as nonresident for tax purposes was based only on the definition of a resident for tax purposes which is purely a function of days physically present in the US.
 
norsk said:
Our filing as nonresident for tax purposes was based only on the definition of a resident for tax purposes which is purely a function of days physically present in the US.
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But it isn't purely a function of the days spent in the US; there is also the "green card test", among other conditions.

They do not question my last 3 years in the US, they question whether or not i have abandoned my GC in the prior years when i filed as non-resident (2005-2007) for federal tax purposes.
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If that is the issue, they shouldn't be bothering you about it now since that was more than 3 years ago. Except perhaps to tell you to amend those returns to file as resident and pay any unpaid taxes if the nonresident filing resulted in underpayment.
 
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Jackolantern said:
If that is the issue, they shouldn't be bothering you about it now since that was more than 3 years ago. Except perhaps to tell you to amend those returns to file as resident and pay any unpaid taxes if the nonresident filing resulted in underpayment.
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I don't think it is that simple. A basic requirement for naturalization is that the applicant maintain lawful LPR status from the moment of getting a GC to the time of applying for naturalization. If they decide that the OP abandoned her GC status during the 2005-2008 period, they may deny her application based on that, regardless of what happened after 2008. My impression from the OP's first post is that this was the IO's concern. Generally, filing a federal tax return as a non-resident creates a presumption of having abandoned LPR status. I am not sure about the underlying law here, but it seems like a pretty big problem to me.
 
yes i understand it is a big problem. I was hoping that someone on this forum had similar situation and/or know what else i can do to prove intent.
 
You can prove intend of maintaining GC by having filed taxes as US resident,and maintaining primary abode in the US the entire time. Since you have neither, the presumption is that you have abandoned US residency at the time and can't prove otherwise.
 
thanks Bobsmyth for your response. Should CIS rule that i abandoned my GC does that mean:
a) i need to return this GC and apply for the new one? and if so do i have to return to my home country to do that or i can stay here and apply here?
b) i get to keep my current GC and i can reapply in the future? if so when can i reapply and is there any law i can refer to?
i have heard conflicting information and not sure which one is true?
Thank you very much for your help
 
norsk said:
thanks Bobsmyth for your response. Should CIS rule that i abandoned my GC does that mean:
a) i need to return this GC and apply for the new one? and if so do i have to return to my home country to do that or i can stay here and apply here?
b) i get to keep my current GC and i can reapply in the future? if so when can i reapply and is there any law i can refer to?
i have heard conflicting information and not sure which one is true?
Thank you very much for your help
Click to expand...

Unless USCIS decides to initiate notice to appear proceeding to revoke your GC, there's no need to return it or apply for a new one. At this point, I don't see why they would do so.
On your application, did you disclose your address as outside the US between 2005-2008 as well as your time outside the US?
 
i did disclose the place i lived outside the US from 2006 till mid 2008 (going back 5 years from 2011) and yes i did show all the time i was outside and that number of days out does not look pretty. However, during the interview the number of days out before 2008 did not seem to interest her - i mean it was pretty clear she understood that i was not permanently here till 2008 (and i barely left the US from 2008-2011). The interview went pretty smooth till we reached the question "have you ever filed tax as non-resident?" and this is where she said that i need to be able to prove the intent to live in the US during 2005-2007 or otherwise it seems like i may have abandoned my GC
 
Did you apply for a reentry permit at the time?

How often/how long did you travel back to US during the time?

Along with all the evidence you have, you'll need to provide a detailed letter explaining the specifics of your situation (filing as nonresident) and how it relates to your case as well as demonstrating the temporary situation of your husband's employment abroad.
 
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i have never been outside the US for more than 1 year. The longest i have been out was 10 months and therefore i have never applied for re-entry permit. As I explained to the CIS (and my husband obtained a letter from his former company verifying this) our stay was not intended to last as long as it did. We were trying to return to the US in 2005; however, there were emergencies in his firm that necessitated his stay. I usually came to the US every 6-7 months and stayed for 10 days up to 2 weeks. I am planning to write the cover letter with my explanation of the situation when i submit the proof i came up with (even if it is a very insufficient proof).

My concern however is that if i get denied on my application due to the abandonment of my GC and if get to keep my GC - when can i possibly/ if ever reapply for citizenship? I will always have to answer "yes" to the question re filing as non-resident since it says "have you EVER filled as non-resident?".

Thank you
 
norsk said:
i have never been outside the US for more than 1 year. The longest i have been out was 10 months and therefore i have never applied for re-entry permit. As I explained to the CIS (and my husband obtained a letter from his former company verifying this) our stay was not intended to last as long as it did. We were trying to return to the US in 2005; however, there were emergencies in his firm that necessitated his stay. I usually came to the US every 6-7 months and stayed for 10 days up to 2 weeks. I am planning to write the cover letter with my explanation of the situation when i submit the proof i came up with (even if it is a very insufficient proof).

My concern however is that if i get denied on my application due to the abandonment of my GC and if get to keep my GC - when can i possibly/ if ever reapply for citizenship? I will always have to answer "yes" to the question re filing as non-resident since it says "have you EVER filled as non-resident?".

Thank you
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By submitting the evidence you have along with complete explanation you have at least a chance of showing that you did not intend to give up GC. A reentry permit would have helped even if you weren't out for a continuous year. True, you'll always have to declare that you filed as non-resident for tax purposes if your application is denied, but deal with that later (based on denial reason).
 
quick update - the online status of my application now shows that on November 2 it was placed in the oath scheduling que. So hopefully i will receive my oath ceremony letter shortly. Thanks again to everyone who took their time to look into my case.
 
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